By Douglas V. Gibbs
Presidential Proclamations date all the way back to George Washington. His famous “Thanksgiving Proclamation” was one of eight that Washington issued. The following five presidents issued ten collectively. Until the Twentieth Century the number never reached one hundred. During the antebellum period the most was Franklin Pierce’s 35. Lincoln issued 48, and his successor Andrew Johnson had 79. Then, Ulysses S. Grant issued a whopping 217, the most by any President until Theodore Roosevelt’s 1,081. Sometime during President Theodore Roosevelt’s presidency the name “executive order” began to be used more formally, and the official numbering of executive orders began in 1907 by the Department of State, which assigned numbers to all orders in their files dating back to 1862. To this day, executive letters and memorandums remain unnumbered.
During the Twentieth Century notable numbers of Executive Orders include Woodrow Wilson’s 1,803, Franklin Delano Roosevelt’s 3,721, and that fact that no President since Teddy Roosevelt has issued less than one hundred.
The purpose of Executive Orders are to either act as proclamations (a statement or declaration issued by the President of the United States that are not legally binding) or instructions to the various departments or agencies that are a part of the executive branch regarding executing the laws of the United States. The President, in Article II of the Constitution, is tasked with “faithfully executing the laws of the United States,” and in order to accomplish that task he communicates in writing with the executive branch on how to carry out the task.
Article I, Section 1 of the U.S. Constitution provides that all legislative powers belong to Congress, so in order to be consistent with that clause, which is a part of the concept of a separation of powers, Executive Orders may not hold the power of law. The power to create law, modify law, or repeal law belongs solely to Congress. He may, however, choose how, or if, to spend the monies appropriated. That power is known as the power of impoundment. Despite the fact that a law was passed in 1974 limiting the presidential power of impoundment, the law was unconstitutional. The Congress may not give or take away constitutional powers through legislation; such a move would need to be accomplished through a constitutional amendment which would require two-thirds approval by both Houses of Congress, and then a three-quarters ratification by the States.
Unfortunately, via Executive Orders or independent actions by regulatory agencies, the executive branch often operates unconstitutionally by using Executive Orders or regulatory activities to modify or create law. Presidents Obama and Biden were notorious for using Executive Orders (or other executive devices) as a means to circumvent Congress if the legislative body was not willing to pass bills that they were calling for.
The abuse of Executive Orders are nothing new, and as a result during the presidency of John F. Kennedy there was a significant emphasis on ensuring that executive orders were grounded in legal authority. The plan was to enhance transparency and accountability in the executive branch by requiring each executive order to cite the specific law or constitutional provision it was based on; therefore, the administration would be able to provide a clear legal foundation for the actions taken via Executive Order. The approach did indeed help clarify the scope and limits of presidential power, seeking to ensure that Executive Orders were not issued arbitrarily but that they were rooted in established law. As a result, Kennedy’s administration issued numerous executive orders, with each carefully referencing the relevant legal authority, which set a precedent for future administrations to follow.
Subsequent administrations, while largely sticking to the standard set by Kennedy in naming the legal authority for an Executive Order, sometimes failed to name the law in question, or would claim that a particular law or constitutional provision provided for the action despite the fact that the claim was not true. As a result, over time, we have begun to see Executive Orders challenged legally, with the United States Supreme Court often stepping in as the final arbiter. One example of a legal challenge against an Executive Order dates back to the first term of the presidency of Donald Trump.
The “Muslim Ban,” as it was called by Democrats and the Mainstream Media, suspended the entry into the United States persons from certain countries. The Trump administration cited Section 212(f) of the Immigration and Nationality Act (INA) as the legal basis for the executive order. The Immigration and Nationality Act of 1952, also known as the McCarran-Walter Act, shaped that section of the INA, consolidating and reforming previous immigration laws, establishing a comprehensive framework for immigration and naturalization in the United States. Section 212(f) of the INA legislatively grants to the President the authority to suspend the entry of certain noncitizens. The section emerged in order to address national security concerns during the Cold War era and included provisions for excluding individuals deemed to be threats to the United States.
However, the federal courts which are supposed to be apolitical (meaning that their rulings are only to be based on the law, not ideology) shot down the Executive Order as unlawful; a volley that became common during Trump’s presidency where the Democrats and judges who were allies of the progressives would use political and ideological bias rather than a legal foundation to go after Trump’s actions as President. The lawfare against Trump morphed into even more egregious lawsuits after Trump’s first term ended, all of them politically biased and having no solid foundation of actual law. As President Trump embarks on his second term, it should be expected that the President’s opposition will use the same kind of unethical and unlawful tactics. However, I believe Trump is more equipped this time around to battle back. Time will tell.
— Political Pistachio Conservative News and Commentary
